8/13/2010

Except, of course, that isn’t the issue — as Allahpundit notes. The issue is whether it’s appropriate to build it there. And since the developers are demanding that we worry about their sensibilities . . . what about ours?

How does he feel about Gutfeld’s Muslim gay bar?

UPDATE: Unsurprisingly, he is now explicitly pointing out what I noted in this post: that he ducked the real issue of the wisdom of putting a mosque there.

It’s not that I’m always right, mind you. It’s just that when I’m vindicated on a point, you can bet I’m going to point it out.

Back in March, when a silly federal judge ruled that Congress’s decision to strip ACORN of funding violated the Bill of Attainder Clause, I said:

I don’t find the decision convincing. It seems to me that the opinion essentially establishes some sort of ongoing right to federal funding. . . . Congress is simply saying: we choose not to fund a particular organization. Such decisions, it seems to me, are for Congress to make, and not some federal judge.

. . . .

Does Judge Gershon believe that Congress must wait until ACORN is convicted of criminal violations in a court of law before Congress can choose not to give my tax dollars to ACORN — or that Congress has to set up some kind of quasi-judicial review of misconduct allegations before it can defund an organization? Does Judge Gershon believe that Congress can set no parameters on how our tax dollars are spent, and must leave all discretion on that issue to federal bureaucrats?

The withholding of appropriations, however, does not constitute a traditional form of punishment that is “considered to be punitive per se.” . . . . Congress must have the authority to suspend federal funds to an organization that has admitted to significant mismanagement. The exercise of Congress’s spending powers in this way is not “so disproportionately severe and so inappropriate to nonpunitive ends” as to invalidate the resulting legislation as a bill of attainder.

Duh.

Oh . . . there’s just one more thing . . .

IN YOUR FACE, BRAD FRIEDMAN!

P.S. I went to the Brad Blog (no links for liars!) and couldn’t find Brad’s item on this. I’m sure I just overlooked it . . .

UPDATE: Friedman has now posted on the decision. (No links for liars!) You’ll never believe this . . . but his post actually gets everything completely wrong.

1. When the issue of gay marriage comes before the Supreme Court, Anthony Kennedy will vote to reverse Judge Walker’s decision.

2. If the Ninth Circuit denies the emergency motion for a stay (one has been filed today), Anthony Kennedy will issue a stay. He will then (or instead) refer the matter to the full Court, which will vote to continue the stay by a 5-4 vote.

One stark illustration of Walker’s massive distortion on this broader matter is his assertion (slip op. at 9-10) that “When asked [during closing arguments] to identify the evidence at trial that supported [the] contention [that ‘responsible procreation is really at the heart of society’s interest in regulating marriage’], proponents’ counsel [Charles Cooper] replied, ‘you don’t have to have evidence of this point.’” The clear—and utterly misleading—implication that Walker tries to leave through his grossly out-of-context quotation is that the Prop 8 proponents did not offer meaningful (indeed, overwhelming) evidence and other authority on this point. And plaintiffs’ counsel Ted Olson has compounded the falsehood with irresponsible public statements like this (from his interview on “Fox News Sunday With Chris Wallace”):

In fact, they [Prop 8 proponents] said during the course of the trial they didn’t need to prove anything, they didn’t have any evidence, they didn’t need any evidence.

1. Let’s begin by putting Cooper’s statement in its proper context:

At the closing argument in June, Cooper began by stating that “the historical record leaves no doubt … that the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.” (3028: 13-19.) Cooper cited numerous Supreme Court (and other) cases that reflect this understanding. (3027-3028.)

When Cooper stated that “the evidence shows overwhelmingly that … responsible procreation is really at the heart of society’s interest in regulating marriage” (3038:5-8), Walker asked, “What was the witness who offered the testimony? What was it and so forth?” (3038:14-15.) Cooper began his response:

The evidence before you shows that sociologist Kingsley Davis, in his words, has described the universal societal interest in marriage and definition as social recognition and approval of a couple engaging in sexual intercourse and marrying and rearing offspring.

Cooper then cited Blackstone’s statements—which were also in evidence submitted at the trial—that the relation of husband and wife and the “natural impulse” of man to “continue and multiply his species” are “confined and regulated” by “society’s interests”; that the “principal end and design” of marriage is the relationship of “parent and child”; and that it is “by virtue of this relation that infants are protected, maintained, and educated.” (3038-3039*.)

As Cooper proceeded to work his way through “eminent authority after eminent authority”—all in evidence submitted at the trial—Walker interrupted him to ask the bizarre question, “I don’t mean to be flip, but Blackstone didn’t testify. Kingsley Davis didn’t testify. What testimony in this case supports the proposition?” (3039:16-18.)

Cooper responded to Walker’s question:

Your Honor, these materials are before you. They are evidence before you.… But, your Honor, you don’t have to have evidence for this from these authorities. This is in the cases themselves. The cases recognize this one after another. [3039:19-3040:1]

Walker: “I don’t have to have evidence?” [3040:2]

Cooper: “You don’t have to have evidence of this point if one court after another has recognized—let me turn to the California cases on this.” [3040:3-5]

Note that only the underlined portion of the passage is what Walker quotes in his opinion.

At least Big Media set us straight, as the watchdogs over a sometimes dishonest judiciary.

I have an upcoming essay about the way in which the value of our votes has been diminished over time. One of the reasons our votes are worth less nowadays is the negation of our votes by liberal federal judges, who issue rulings striking down our laws — sometimes after a trial where the people supposedly charged with defending the law actually disagree with the law.

I can’t let pass without comment a perfect illustration of this principle of negation of our votes, as it is so well illustrated by a pair of L.A. Times articles today.

In the first, you can listen to the palpable frustration of voters who thought their vote had actually meant something, but are now finding out otherwise:

“I thought the people voted on it,” said Russell Wade, 72, who was watching children body-boarding in the waves below Huntington Beach Pier this week. “I guess it doesn’t matter as long as certain groups don’t like what the voters decide. The people voted on it and it should be left alone. Period.”

Another voter echoed the sentiment:

“Why should I waste my time voting if the opposition can find one judge to overturn the will of the people,” said Bill Petersen, 66, of Tustin. “It doesn’t make sense.”

Meanwhile, we have another article that treats seriously the notion, which I mocked last night, that the proposition’s backers had standing for purposes of a trial, but not an appeal. What is perhaps most outrageous about this theory, is that the people pass a proposition because they don’t trust the way that state officials are handling the issue — and then it falls to state officials, who disagree with the proposition, to “defend” the proposition:

The defendants in that case were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, but they declined to defend the law. As the losing parties, they have authority to appeal Walker’s ruling. But both Brown and Schwarzenegger hailed Walker’s decision and said they would not appeal.

A private group that opposes same-sex marriage, ProtectMarriage.com, defended Proposition 8 during the trial Walker held earlier this year. The group wants to appeal but may lack legal standing to do so.

There is more at stake here than gay marriage. If that argument prevails, it eviscerates California’s initiative process, as to any law that the Attorney General and Governor don’t like.

Free advice for Meg Whitman’s handlers: this needs to be a major issue in Jerry Brown’s campaign.

As it happens, the judge’s standing argument not only lacks common sense, it lacks legal soundness as well. Not that you would know that from reading the L.A. Times. Here is Ed Whelan:

[S]ettled principles of California law, including but not limited to the very same type of legal authority relied upon by Karcher—a State Supreme Court decision permitting intervention—establishes Proponents’ authority “as agents of the people of Arizona to defend, in lieu of public officials,” the constitutionality of Proposition 8.

(Thanks to A.W. for this link.)

In the L.A. Times article, these settled principles are only fleetingly alluded to by John Eastman before they are ridiculed by the usual suspect Erwin Chemerinsky, a partisan hack whose views on the law are purely a function of political ideology.

But pay no attention to settled principles, or to the sanctity of the vote. All of this is dispensable when it comes time to negate your vote for ideological reasons.

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